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Petitioner: MUHAMMAD NASIR KHAN, DIRECTOR, PHYSICAL EDUCATION VS Respondent: SECRETARY OF EDUCATION, GOVERMENT OF THE PUNJAB
2000 P L C (C
2000 P L C (C.S.) 312
[Supreme Court of Pakistan]
Present: Irshad Hasan Khan and Ch. Muhammad Arif, JJ
MUHAMMAD NASIR KHAN, DIRECTOR, PHYSICAL EDUCATION
Versus
SECRETARY OF EDUCATION, GOVERMENT OF THE PUNJAB and 3 others
Civil Petition for Leave to Appeal No. 159 of 1997, decided on 6th July 1998.
(On appeal from the judgment dated 23‑1‑1997 passed by Punjab Service Tribunal, Lahore in Appeal No. 408 of`1997).
(a) Punjab Service Tribunals Act (IX of 1974)‑‑‑
‑‑‑S. 4‑‑‑Appeal before Service Tribunal‑‑‑Limitation‑‑‑Civil servant could not approach Service Tribunal for redress of his grievance in regard to matters pertaining to his terms and conditions of service without allowing period of ninety days to expire as contemplated by proviso (a) to S. 4 of Punjab Service Tribunals Act, 1974.
(b) Punjab Service Tribunals Act (IX of 1974)‑‑‑
‑‑‑‑S. 4‑‑‑Appeal before Service Tribunal‑‑‑Making a representation to next Authority above the Authority, which made original order, was a condition precedent for vesting jurisdiction in the Service Tribunal to pass any order in terms of S. 4 of Punjab Service Tribunals Act, 1974.
(c) Civil Servants Act (LXXI of 1973)‑‑‑
‑‑‑‑S. 9‑‑‑Transfer‑‑‑Civil servant had no vested right to continue to hold a particular post at a particular place‑‑‑Civil servant was liable to be transferred anywhere in exigencies of service.
(d) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 212 (3)‑‑‑Leave to appeal to Supreme Court‑‑‑Dispute raised in petition for leave to appeal, related to an individual grievance and no question of law of public importance was involved to warrant interference under Art. 212 (3) of Constitution of Pakistan (1973)‑‑‑Petition for leave to appeal was dismissed.
Rao Munawar Khan, Advocate Supreme Court instructed by Syed Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.
Nisar Arshad Kotla, Advocate Supreme Court and Ch Mehdi Khan Mehtab, Advocate‑ on‑Record for Respondents.
Date of hearing: 6th July, 1998.
JUDGMENT
IRSHAD HASAN KHAN, J.‑‑‑This petition for leave to appeal is directed against the order dated 23‑1‑1997 passed by the Punjab Service Tribunal, Lahore (hereinafter referred to as the Tribunal), in Service Appeal No.408 of 1997.
2. Petitioner Muhammad Nasir Khan is Director Physical Education, Government Commercial Training Institute, Samundari, District Faisalabad. On 15‑12‑1990, the Director, Technical Education, Punjab, Lahore, issued he following transfer orders:‑‑
"DIRECTORATE OF TECHNICAL EDUCATION, PUNJAB, LAHORE
NOTIFICATION
The following transfers are hereby ordered with immediate effect:‑‑
Sr. Name of the officer Transferred to No. Present place of posting
1. Mr. Muzaffar Iqbal, Government Commercial Director Physcial Edu: Training Institute, Government College of Samundri Vice Sr. No.2. Commerce, Multan. . 2. Mr. Muhammad Nasir Government College of Khan, Director Physical Commerce, Multan Vice Edu: Government Sr. l. . Commercial Training ,, Institute, Samundri
No TA/DA is admissible to Sr. No. l
(Sd.) Director Technical Education, Punjab, Lahore."
3. The above transfer orders were, however, held in abeyance with immediate effect vide Notification, dated 16th January, 1997, issued by Director, Technical Education, Punjab, Lahore.
4. Muzaffar Iqbal, respondent No.4 herein, approached the Tribunal against the order dated 15‑12‑1990 (supra). The Tribunal vide impugned order dated 23‑1‑1997 disposed of the appeal with the following observations:
"It is stated that the appellant after completing his tenure of 3 years as Director Physical Education, Government College of Commerce, Multan was transferred to Government Commerce Training Institute Samundri on 15‑12‑1996. Director Technical Education, Punjab, Lahore has issued an order on 16‑1‑1997 holding in abeyance the transfer order dated 15‑12‑1996. It is contended that the order dated 15‑11‑1996 could not be modified as the same has already been acted upon; and that the impugned order is violative of the transfer policy. The representation filed by the appellant is still pending with the department on which no action has so far been taken. The same shall be decided as early as possible. The impugned order dated 16‑1‑1997 is held in abeyance till the decision of , the departmental representation provided the appellant has not already relinquished the charge of his post at Samundri. "
5. Rao Munawwar Khan, learned Advocate Supreme Court appearing on behalf of the petitioner raised the following contentions:‑‑
(1) That the appeal filed by respondent No. 4, Muzaffar Iqbal, was premature, inasmuch as, it was filed before the expiry of the statutory period prescribed under section 4 of the Punjab Service Tribunals Act, IX of 1974, in that, no representation was filed before the departmental authority, which was a condition precedent for invoking the jurisdiction of the Tribunal;
(2) that the order dated 15‑12‑1996 had since been held in abeyance, there was no final order open to challenge before the Tribunal;
(3) that the petitioner though party to appeal before the Tribunal, was not heard before passing the impugned order; and
(4) that the order dated 15‑12‑1996 passed by the Director, Technical Education, Punjab, Lahore, was passed for extraneous considerations.
6. We have heard the learned counsel for the petitioner and perused the material available on record. It is true that a civil servant cannot approach the appropriate Service Tribunal for redress of his grievance in regard to matters pertaining to his terms and conditions of service without allowing the period of 90 days to expire as contemplated by proviso (a) to section 4 of the! Punjab Service Tribunals Act, 1974.
7. In the instant case, the Tribunal has failed to appreciate this aspect of the matter in its proper perspective. There is no cavil with the proposition of law advanced by the learned counsel for the petitioner that making a representation to the next authority above the authority, which made the 8 original order, is a condition precedent for vesting jurisdiction in the Tribunal to pass any order in terms of section 4 of the Punjab Service Tribunals Act, 1974.
8. Be that as it may, in the instant case, it is an admitted position that the petitioner had been holding the office of Director, Physical Education, for the last more than 6/1‑2 years. Clearly, a civil servant has no vested right to continue to hold a particular post at a particular place. In terms of section 9 of the Civil Servants Act, 1973 a civil servant is liable to be transferred anywhere in the exigencies of service.
9. The impugned order does not show that the petitioner was heard before passing the impugned order. The attendance of Syed Abbas Raza, Deputy Attorney for the respondents has been noted but there is no mention of the present petitioner being represented by any counsel.
10. Be that as it may, we have heard the petitioner at some length and find no substance in the case on the short ground that the petitioner cannot be permitted to hold the post in dispute indefinitely. We find that no prejudice has been caused to the petitioner notwithstanding the defects pointed out by the petitioner. Additionally, the dispute raised herein relates to an individual grievance and no question of law of public importance is involved herein to warrant interference under Article 212(3) of the Constitution.
11. Resultantly, the petition is dismissed and leave declined.
H.B.T./M-231/S Petition dismissed.